## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Gastroenterology Consu ltant s of the North S

hore, S.C. v. Meiselm an , 2013 IL App (1st) 123692

Appellate Court Caption GASTROENT E RO L O G Y CON SU L T A N T S O F T H E N O RT H SH O RE, S

. C

. , P l ai n t i ff

-A p p el l an t , v

. M I C K S

. M E I S E L M AN
, J

. D.
, NO R T HS HO R E UN I VE R S I T Y HE ALTH S YS T E M M E DICA L G RO U P, I N C.
, a n d N O RT H SH O RE U

N IV ERSI TY HEAL T H SY ST E M
, Def endants-A

ppellees.

District & N o. First District, F irst Division Docke t No. 1-12-3692

Filed April 15, 2013

Held (Note : This syl lab us

con st it ute s no p art of the opi nio n of the cour t but has bee n pre

par ed by the Re

p ort er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff medical g roup’s motion for a preliminary injunction ag ainst defe ndant’s solicitation or treatment of plaintiff’s former patients except in a medical em er gency was proper ly denied, since plaintiff was not entitled to enfor cem ent of the restric tive covena nt in defe ndant’s employ ment contra ct with plaintiff, espec i al l y when plaintiff failed to establi s h a leg itimate business interest in need of protec tion afte r defe ndant resigned from the g roup or that it had a near -per manent relationship wit h patients defe ndant treated.

Dec ision Under Review Appea l from the Circuit Co urt of Cook County
, No. 11-CH-31067; the Hon. L ee Pre ston, J udg e, pre siding.

J udg ment Affir med and r emande d.Counsel on

Appea l Dahl & Bona dies, L L C, of Chicag o (J am es E

. Dahl and Paul N. Bona dies, of counse l), for a ppellant.

McGuire Woods, L L P, of Chicag o (Jeffre y C. Clark and J ames J

. Sc h a n a b e r g e r , o f c ounsel), and Kamensky Rubinstein Hochman & D e lo tt , L L P, of L incolnwood (Stuart Gimbel, of c ounsel), for appellee s.

Panel PRES I DI NG J USTI CE HOF FMAN delivere d the judgme nt of the court, with opinion.
J ustices Cunningham and Delort concur red i n the judgme nt and the opinion.

OP INION

¶ 1 The plaintiff, Gastroe nterolog y Consultants of the North Shore, S.C., ap p ea l s from an order of the circ uit cour t o f Cook County which denied its motion for a preliminary injunction, restra ining the defe ndant, Mick S. Meiselman, M.D., from soliciting its patients and from trea

ting its patients except in situations involving a g enuine medical emerg ency

. For the re asons which f

ollow, we af

firm the judg ment of the c ircuit court. ¶ 2 The evidentiar y materia l in the rec ord supports the following fac tual scena rio. In 1996, Meiselman, along with three other phy sicians, fo rm ed t h e plaintiff corpor ation. All of the doctors associate d with the plaintiff, including Meiselman, wer e require d t o enter into an employ ment agree ment containing a restric tive covena nt which prohibited them, for a period of 36 months following the termination of their employ ment, from soliciting patients of the
p l ai n tiff or from treating any of the plaintiff’s patients direc tly or in connec tion with any entity eng ag ed in a competitive business and located within a 15-mile radius of eac h of the plaintiff’s off

ices a nd the Evanston Hospital fa cilities. ¶ 3 On Dec ember 14, 2010, Mei s el m an n o t i fi ed the plaintiff that he was terminatinghis employ ment, eff ective April 14, 2011, to acc ept a position with NorthShore University Hea lthSy stem Medica l Group, Inc. (NorthShore ). as its chief of ad v an ce d thera peutic endoscopy . On April 20, 2011, Meiselman star ted work f

or NorthShore

. ¶ 4 On J une 9, 2011, the plaintiff sent a letter to Meiselman acc using him of brea ching the restric tive covena

nt in h i s em p l oy

ment agree ment. Meiselman rea dily admits that, in J uly 2011, h e b ega n treating any patient who soug ht out his service s, including patients he had
treated while in the employ of the plaintiff. ¶ 5 On September 1, 2011, the plaintiff filed the instant action seeking both preliminary and
perma nent injunctive relief agai n s t M eiselman for brea ch of the restric tive covena nt containe d wi t h in his employ ment agree ment. In addition, the plaintiff soug ht a judgme nt ag ainst NorthShore and NorthShore University Hea lthSy stem for both compensatory and

-2-punitive damag es pre dicated upon a theory of tortious interfe renc e with contra ct. ¶ 6 On October 13, 2011, the plaintiff filed a m o t i o n for a preliminary injunction ag ainst Meiselman, seeking to restra in him from soliciting any of i ts patients and from treating its patients except in situations involving a g enuine medical emer g ency

. The plaintiff alleg ed, inter alia
, that, in v iolation of the restric tive covena nt contained within his employ ment agree ment, Meiselman beg an soliciting and treating its patients beg inning at some time afte r April 14, 2011. ¶ 7 Following an evide n t i ar y h ea ri n g, t h e trial court denied the plaintiff’s motion for a preliminary injunction, finding
, inter alia
, that the plaintiff failed to prove that: it had any leg itimate protec table interest in the patients being treated by M ei s el m an; the restric tive

covena nt in Meiselman’s employ ment agree ment is rea sonable in g eographic al scope; it has suffe red or will suffe r irrepa rable harm if the restric tive covena nt is not enfor ced; and it has

a rea sonable likelihood of succe ss on the merits. There afte r, the plaintiff timely fi led this interlocutory appea l pur suant to Supre me Court Rule 307(a) (I ll. S. Ct. R. 307(a) (ef f. Fe b. 26, 2010)), c ontendingthat: (1) the trial court applied an incorre ct standar d in determining the exis t en ce o f a l eg itimate business interest in need of protec tion; (2) the trial court’s finding s that the restric tive covena nt in Meisel man’s employ ment agree ment is not

rea sonable in g eographic al scope and that it had not suffe red, and will not suffe r, irrepa rable harm if the restric tive co v en ant is not enfor ced are ag ainst the manifest weight of the evidenc e; and (3) the trial court’s deter mination that it failed to show an extreme emer g ency in need of redr ess is both ag ainst the manifest we ight of the evidenc e and ir

rele vant. ¶ 8 In order to be entitled to the issuance of a preliminary injunction in this case , the plaintiff

was require d to establish by a preponde ranc e of the evidenc e that (1) it possesses a clea r rig ht

or interest needing protec tion, (2) no adequate reme dy at law exis ts, (3) irrepa rable harm will result if an injunction is not g rante d, and (4) there is a likelihood of succe ss on the merits of the case

. Southern Illinois Medic al Business Associates v. Camillo
, 190 I ll. App. 3d 664, 671 (1989). ¶ 9 The decision to g rant or deny a preliminary injunction is a matter committed to the sound discretion of the trial court, and its decision will not be disturbed on appea l absent an abuse of t hat di scre tion. Callis, Papa, Jack stadt & Halloran, P.C. v. Norfol k &W estern Ry . Co.
, 195 I ll. 2 d 3 56, 366 (2001). When, howeve r, the issue prese nted is whether the trial court applied an inc orre ct leg al test to the evidenc e, the question is one of law and our review is de novo

. In re A.H

. , 207 I ll. 2d 590, 593 (2003). ¶ 10 A contra ct in total and g ener al rest ra i n t o f t ra d e i s v o i d as ag ainst public policy

. Howeve r, a restric tive covena nt, ancillar

y to a valid employ

ment relationship, will he upheld if the restraint is rea sonable. Reliable Fir e Equipment Co

. v. A r r edondo
, 2011 I L 111871, ¶ 16. A restric tive covena nt is rea sonable only if it: “(1) is no g reater than is require d for the protec tion of a leg itimate business interest of t he employ er- promisee; (2) does not impose undue har dship on the employ ee- promisor, and (3) is not injurious to the public.” Reliable Fire Equipment Co.
, 2011 I L 111871, ¶ 17. The protec tion of the employ er’ s leg itimate business interest is a long- established component in this three -prong rule of rea son. Reliable Fire Equipment Co.
, 2011 I L 111871, ¶ 30. Although the three -prong test is the standard for

-3-deter mining the rea sonablene ss of a restric tive covena nt, it s a p p li c a tion is unstructure d; there is no inflexi ble formula. Reasonable ness must be decide d on an ad hoc basis. Reliable Fire Equip me n t Co.
, 2011 I L 111871, ¶ 33. Whether the employ er has a leg itimate business interest in need of protec tion is based upon the totality of the circ umstances of the individual

case

. “F actor s to be considere d in this analy sis include, but are not limit ed to, the near

perma nence of customer rel at ionships, the employ ee’ s acquisition of confide ntial information throug h his employ ment, and the time and place restric tions.” Reliable Fire Equipment Co.
, 2011 I L 111871, ¶ 43. The plaintiff argues that the circ uit c ourt applied an incorre ct test in deter

mining whether it possessed a leg itimate business interest in need of protec tion. Acc ording t o t h e plaintiff, the circ uit court applied the “Ne ar- Permane nt Customer Relationship Test” which was repudiated by the supreme court in Reliable Fire Equipment Co. , 2011 I L111871, ¶¶ 37- 40. We disag ree

. ¶ 11 Our rea ding of the circ uit court’s memorandum o p i n i o n re fl ec ts that it analy zed the question of whether the plaintiff has a leg itimate business interest in need of protec tion based
upon the totality of the circ umstances in this case

. I t is true that the circ uit court considere d whether the plaintiff had a near -per manent relationship wi t h the patients being treated by Meiselman. I t is also true, howeve r, that the circ uit court considere d whet h er M eiselman misappropriate d any confide ntial information that he acq uired while employ ed by the plaintiff and, subsequent to the termination of his employ ment, used that information for his

own benef

it; and the g eographic restric tio n s co n t ained in the employ ment agree ment. A d d it iona lly
, the circ uit court examined issues, such as: the level of the plaintiff’s investment of time, e ffor

t or money

in the development of

Meiselman’s r elationship with his patients, Meiselman’s patient-re fer ral source s, whether the plaintiff assisted Meiselman in the development of his profe ssional p ractice throug h adver tising or marke ting, Meiselman’s maintenanc e of a separ ate office wher e he trea ted his patients, the fac t that Meiselman, not the plaintiff, billed for his service s, and whether Meiselman would not have develope d his relationship with his patients and ref err al source s “but for” his aff iliation with the plaintiff. To us, it is clea

r from the the circ uit court’s memorandum opinion that i t m ad e t he deter mination of whether the plaintiff establi s h ed a leg itimate business interest in need of protec tion based upon the totality of the c ircumstance s in this case. ¶ 12 Next, the plaintiff argues that the c ircuit court’s finding that it f ailed to e stablish that it possessed a leg itimate business interest in need of protec tion is ag ainst the manifest weig ht of the e vidence . Ag ain we disa g ree

. ¶ 13 Fa ctual deter

minations made by a trial co u rt s itting without a jury are entitled to gr eat defe renc e and will be disturbed on revie w only when they are ag ainst the manifest weight of the evidenc e. Bazydlo v. Volant
, 164 I ll. 2d 207, 214-15 (1995). Fa ctual finding s are ag ainst the manifest weight of the evidenc e only when an opposite conclusion is clea rly appar ent or when they ap p ea r to be unrea sonable or not based upon the evidenc e. Leonardi v. Loyola University of Chicago , 168 I ll. 2d 83, 106 (1995). ¶ 14 The testim ony at t he evidentiary hear ing conducted by the trial cour t prior to ruling on the plaintiff’s motion for a preliminary injunction establishes that, prior to the formation of the plaintiff corpor ation, Meiselman prac ticed g astroente rolog y for approximately 10 y ear s in the area later serviced by the pl aintif f, t re at ing thousands of patients. Meiselman, along

-4-with Drs. J ames Rosenberg
, Tom Neumann and Tat Tsang
, formed the plaintiff corpor ation

in 1996. Meiselman testified that, from the very beg inning of his association wi t h the plaintiff, he continued treating patients, and acc epting ref err als from phy sicians, with whom he had develope d relationships prior to affiliating w ith the plaintiff. After the formation of th e p lain ti f f c o r p o ration, Meiselman prese rved his independe nt rela tionship with his patients

. Acc ording to Meiselman, the plaintiff did not int ro du ce him to either his patients or his phy sician-r efe rra l source s. Rosenberg
, the plaintiff’s p re sident, admitted that phy sicians would ref er patients to Meiselman individually
, not to the plaintiff. The plaintiff did not adver tise, promote or marke t Meiselman’s prac tice, and, w it h th e e xc e ption of administrative support, the plaintiff was not materia lly involved with his prac tice. Meiselman billed for his service s, not the pl aintiff; and his compensation was based upon the revenue ge nerated by his independe nt prac tice. Meiselman maintained his own office and had his own telephone number. Ba sed upon the testimony at the hear ing, the circ uit court corr ectly conclude d that there was no evidenc e that the plaintiff ever established a near -per manent relationship with the patients treated by

Meiselman. ¶ 15 Following the hear ing, the circ uit court conclude d that the plaintiff had failed to e stablish that it had a leg itimate business interest in need of protec tion. Since we cannot say that an opposite conclusion than that rea ched by the trial court is clea rly appar ent, its conclusion in this reg ard is not ag ainst the manifest we ight of the evidenc e. ¶ 16 In the absenc e of a leg itimate business interest in need of protec tion, the plaintiff cannot satisfy the three -prongtest of re asonable ness nece ssary to e ntitle it to judicia l e nforc ement of the restric tive covena

nt contained in Meiselman’s employ ment agree ment. Reliable Fire Equipment Co. , 2011 I L111871, ¶¶ 17- 34. ¶ 17 There fore
, we need not addre ss the other issues raised by the plaintiff in its brief befor e this court, relating to the propriety of t he trial court’s findings relating to t h e geo g raphic al scope of the restrictive covena nt. Reliable Fir e Equipment Co.
, 2011 I L 111871, ¶ 20; see also House of Vision, Inc. v . Hiyane , 37 I ll. 2d 32, 38-39 (1967). ¶ 18 Ba sed upon the fore g oing analy sis, it is clea r to us that there is l i t t l e l i k el i h ood of the plaintiff’s succe ss on the merits of this case ( Southern Illinois Medic al Business Associates
, 190 I ll. App. 3d at 671) and, there fore
, the trial court did not abuse i t s discretion (see Lonergan v. C

rucible St eel Co. of America
, 37 I ll. 2d 599, 612 (1967 )) when it denied the plainti ff’s m o t i on for a preliminary injunction to restra in Meiselman from soliciting the plain t i ff’s former patients and from treating its patients except in situations involving a g enuine medical emer g ency

. Consequently
, we aff irm the judgme nt of the circ uit court and

rema nd this matter for f

urther pr ocee dings c onsistent with thi s opinion.

¶ 19 Affir

med and r emande d.

-5-